United States v. Derek Clemens

                 United States Court of Appeals
                            For the Eighth Circuit

                                No. 20-1180

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee


                                   Derek Clemens

                      lllllllllllllllllllllDefendant - Appellant

                    Appeal from United States District Court
                   for the Northern District of Iowa - Waterloo

                         Submitted: December 14, 2020
                            Filed: March 12, 2021

Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.

LOKEN, Circuit Judge.

       Derek Clemens admitted to investigators that he took photographs of a woman
in a gas station bathroom. A warrant search of his cell phone and other electronic
devices uncovered more than 100 images and 75 videos of child pornography,
including 30 videos and 4 images depicting a victim referred to by the pseudonym
“Tara.” Clemens pleaded guilty to receipt of child pornography in violation of 18
U.S.C. §§ 2252(a)(2) and 2252(b)(1). The district court1 sentenced him to 108
months imprisonment followed by ten years of supervised release. Over Clemens’s
objection, the court ordered him to pay $3,000 restitution to victim Tara and imposed
a special condition of supervised release prohibiting him from viewing, possessing,
producing, or using “any materials that depict sexually explicit conduct as defined in
18 U.S.C. § 2256, or any form of sexually stimulating, sexually oriented, or
pornographic materials.” Clemens appeals, arguing (1) $3,000 is an unlawful
restitution award because it exceeds the losses for which he can be held responsible,
and (2) the special condition is unconstitutionally vague and overboard. We affirm.

                                   I. Restitution

       In 1975, Congress enacted a specific statute providing that a sentencing court
“shall order restitution” for any violation of an offense involving Sexual Exploitation
and Other Abuse of Children found in Chapter 110 of Title 18. 18 U.S.C. § 2259(a).
In Paroline v. United States, the Supreme Court considered “how to determine the
amount of restitution a possessor of child pornography must pay to the victim whose
childhood abuse appears in the pornographic materials [he] possessed.” 

572 U.S. 434

, 439 (2014). The court concluded:

      where it can be shown both that a defendant possessed a victim’s images
      and that a victim has outstanding losses caused by the continuing traffic
      in those images but where it is impossible to trace a particular amount
      of those losses to the individual defendant by recourse to a more
      traditional causal inquiry, a court applying § 2259 should order
      restitution in an amount that comports with the defendant’s relative role
      in the causal process that underlies the victim’s general losses. The
      amount would not be severe in a case . . . [where] the victim’s general
      losses from the trade of her images . . . are the product of the acts of

        The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.

      thousands of offenders. It would not, however, be a token or nominal
      amount [but rather] a reasonable and circumscribed award imposed in
      recognition of the indisputable role of the offender in the causal process
      underlying the victim’s losses and suited to the relative size of that
      causal role.

Id. at 458-59.

On December 7, 2018, Congress substantially amended § 2259 in
response to the Paroline decision. Amy, Vicky, and Andy Child Pornography Victim
Assistance Act of 2018, Pub. L. 115-299, 132 Stat. 4383. As relevant here, Congress
amended § 2259(b)(2) and (c)(2) to provide:

      (b) Scope and nature of order. --

             (2) Restitution for trafficking in child pornography. If the
      defendant was convicted of trafficking in child pornography, the court
      shall order restitution under this section in an amount to be determined
      by the court as follows:
             (A) Determining the full amount of a victim’s losses. If the
      defendant was convicted of trafficking in child pornography, the court
      shall determine the full amount of the victim’s losses that were incurred
      or are reasonably projected to be incurred by the victim as a result of the
      trafficking in child pornography depicting the victim.
             (B) Determining a restitution amount. After completing the
      determination required under subparagraph (A), the court shall order
      restitution in an amount that reflects the defendant’s relative role in the
      causal process that underlies the victim’s losses, but which is no less
      than $3,000.
             (C) Termination of payment. A victim’s total aggregate
      recovery pursuant to this section shall not exceed the full amount of the
      victim’s demonstrated losses. After the victim has received restitution
      in the full amount of the victim's losses as measured by the greatest
      amount of such losses found in any case involving that victim that has
      resulted in a final restitution order under this section, the liability of
      each defendant who is or has been ordered to pay restitution for such
      losses to that victim shall be terminated. . . .

              (c) Definitions.--

              (2) Full amount of the victim’s losses. For purposes of this
       subsection, the term “full amount of the victim’s losses” includes any
       costs incurred, or that are reasonably projected to be incurred in the
       future, by the victim, as a proximate result of the offenses involving the
       victim, and in the case of trafficking in child pornography offenses, as
       a proximate result of all trafficking in child pornography offenses
       involving the same victim . . . .

Amended § 2259(c)(3) defines “trafficking in child pornography” offenses to include
18 U.S.C. § 2252(a)(2), Clemens’s offense of conviction.

       The district court concluded that amended § 2259 applied to Clemens’s
sentencing because he possessed Tara’s images after its enactment. It imposed
restitution of $3,000, the mandatory minimum under amended § 2259(b)(2)(B). On
appeal, Clemens does not dispute the amendment applies to his sentence but argues
“the amount ordered was an abuse of discretion because the district court misapplied
Paroline.” He argues (i) that $3,000 exceeds the full amount Clemens can be
responsible for because all but $800 of the claimed losses occurred before he
committed his child pornography trafficking offense, and (ii) the district court failed
to “disaggregate” the losses caused by his possession and use of Tara’s images from
the damages caused by their initial production, a “complication” the Supreme Court
noted but “set aside” in 

Paroline, 572 U.S. at 449


      We reject both these arguments because they are contrary to the plain meaning
of § 2259 as amended. The statute now explicitly defines “the full amount of the
victim’s losses” as the losses “incurred . . . or projected to be incurred . . . as a result
of the trafficking in child pornography depicting the victim,” not just the losses
Clemens can be responsible for. § 2259(b)(2)(A) (emphasis added). After
determining that amount, the amended statute directs that the court “shall order”

restitution “in an amount that reflects the defendant’s relative role . . . but which is
no less than $3,000,” so long as the victim’s “total aggregate recovery” does not
exceed her losses. § 2259(b)(2)(B)-(C). Clemens did not refute the government’s
detailed evidence that Tara has incurred more than $3,000 in total losses resulting
from trafficking her images, and there is no evidence her “total aggregate recovery”
has exceeded her total losses. Thus, on this record, the district court did not err in
imposing the mandatory minimum restitution award. The Paroline factors no doubt
remain relevant in determining whether a defendant’s “relative role in the causal
process” supports an award of more than $3,000 under amended § 2259(b)(2)(B). In
such a case, how to determine the defendant’s “relative role” and whether
disaggregation applies to this determination under the amended statute are questions
we leave for another day.2

                 II. Supervised Release Special Condition Three

        Clemens argues the district court erred in imposing the requirement in special
condition three that he “not view, possess, produce, or use any materials that depict
. . . any form of sexually stimulating, sexually oriented, or pornographic materials.”
When exercising its wide discretion, the district court “must impose conditions that
reasonably relate to the nature and circumstances of the offense, the defendant’s
history and characteristics, deterring criminal conduct, protecting the public, and
promoting the defendant’s correctional needs.” 

Bordman, 895 F.3d at 1060

        In United States v. Bordman, where we applied Paroline to the statute before
it was amended, we declined to transform the disaggregation factor “from a ‘rough
guidepost’ into a ‘rigid formula.’” 

895 F.3d 1048

, 1059 (8th Cir. 2018), cert. denied,

139 S. Ct. 1618

(2019). Other circuits have applied the factor differently, but to our
knowledge no published decision has addressed this question under the amended
statute. There may now be an additional question whether the new definition of “full
amount of the victim’s losses” in § 2259(c)(2) eliminated disaggregation as a
“complication.” Like the Court in Paroline, we can set that issue aside in this case.

(quotation omitted). Conditions must not constrain the defendant’s liberty more than
necessary; we are particularly reluctant to uphold sweeping restrictions on important
constitutional rights.

Id. Clemens’s Presentence Investigation

Report recommended special condition
three “based upon the nature and circumstances of the offense and the history and
characteristics of the defendant.” Clemens timely objected to special condition three,
arguing in his sentencing brief that “it prohibits Mr. Clemens from accessing lawful
materials which are protected by the First Amendment,” and “there is absolutely no
evidence that preventing him from looking at legal, adult pornography, or ‘sexually
stimulating’ material will protect children or serve any useful purpose.” At
sentencing, after counsel stated they had nothing to add to their sentencing briefs, the
district court overruled Clemens’s objection:

      I understand that this language is broad enough to include adult sexual
      materials, as well as child pornography, but based on my review of the
      case law and this defendant’s history and characteristics, of his
      involvement in possessing and downloading child pornography and also
      taking photographs of postpubescent and adult females in a clandestine
      manner, I find this to be an appropriate limitation on his supervised
      release. Quite frankly, for his own benefit in many ways . . . .

       On appeal, Clemens argues that the above-quoted terms in special condition
three are unconstitutionally vague and overbroad. He does not renew his objection
to including adult pornography in the restriction. And rightly so. We have explicitly
upheld conditions imposing adult pornography restrictions on child pornography
offenders “that were obviously relevant to the child pornography offense at issue or
to the defendant’s history and characteristics.” United States v. Deatherage, 

682 F.3d 755

, 764 (8th Cir. 2012). For example, in United States v. Mefford, we upheld a
restriction on “any pornography” in part because the sex offender’s criminal history,
rather like in this case, included “convictions for outraging public decency by hiding

in a women’s restroom at the state fair and taking pictures from under a stall[.]” 

711 F.3d 923

, 925 (8th Cir.), cert. denied 

571 U.S. 900


       We have reviewed and upheld the three terms at issue -- “sexually stimulating,”
“sexually oriented,” and “pornographic” -- in numerous cases where the conditions
at issue were relevant to the offense of conviction or to the defendant’s history and
characteristics. See, e.g. 

Bordman, 895 F.3d at 1060

(“pornography”); United States
v. Fonder, 

719 F.3d 960

, 961 (8th Cir. 2013) (“sexually stimulating or sexually

Mefford, 711 F.3d at 926

(“any pornography”); United States v. Hobbs,

710 F.3d 850

, 855 (8th Cir. 2013) (“sexually stimulating or sexually oriented

Deatherage, 682 F.3d at 764

(“pornographic images of sexually oriented
materials”); United States v. Demers, 

634 F.3d 982

, 986 (8th Cir. 2011)
(pornographic materials); United States v. Stults, 

575 F.3d 834

, 845 (8th Cir. 2009)
(“any pornographic sexually oriented or sexually stimulating materials”), cert. denied,

559 U.S. 915

(2010); United States v. Boston, 

494 F.3d 660

, 667 (8th Cir. 2007)
(“pornography, sexually stimulating or sexually oriented material”). While
acknowledging that these terms are controversial and can be difficult to apply, we
repeatedly rejected the argument that they are “sweeping restrictions on important
constitutional rights” when the district court’s individualized inquiry established that
the condition was necessary to protect the public. 

Hobbs, 710 F.3d at 854-56


       Clemens attempts to distinguish this line of cases by noting that the similar
special conditions “survived vagueness challenges because the condition included a
‘modifier,’” such as sexually oriented material “deemed inappropriate by the U.S.
Probation Officer in consultation with the treatment provider.”

Id. at 855.

Clemens did not make this objection to the district court so it is not properly
preserved. The conditions as quoted in a number of our prior opinions contained no
such modifier -- see Mefford, Deatherage, Demers – and we have never suggested
that such a modifier is necessary to avoid unconstitutional overbreadth or vagueness.

Beyond that, Clemens concedes that his First Amendment arguments are foreclosed
by this line of cases. He urges us to overrule them, but as a panel we may not do so.

      The judgment of the district court is affirmed.


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